Apple is using 2 main arguments in its epic fight against the FBI

Apple lobbed a constitutional bomb at the government on
Thursday when it
filed a motion to reverse a court order asking the
company to give the FBI access to a gunman's phone.

From day one, CEO Tim Cook promised to fight the FBI's
request to hack an iPhone belonging to a man behind
the mass shooting in San Bernardino,
California.

Providing the information, Cook said, "would undermine
the very freedoms and liberty our government is
meant to protect."

Apple's motion, filed Thursday afternoon, echoes that
sentiment. In it, attorneys from Gibson, Dunn &
Crutcher argue that the company's forced compliance with
the FBI would violate the First and Fifth amendments of the US
Constitution.

Aside from constitutional arguments, Apple's motion also
heavily focuses on the All Writs Act, the 1787 statute the FBI
has cited to compel Apple to cooperate. Namely, attorneys argue
that the 229-year-old law simply doesn't apply to the
case.

First Amendment

Apple's lawyers argue that the government's request that
the company write code it doesn't want to violates the First
Amendment's guarantee to free speech.

"The code must contain a unique qualifier 'so that [it]
would only load and execute on the SUBJECT DEVICE,' and it must
be 'signed' cryptographically by Apple using its own proprietary
encryption methods," attorneys for Apple wrote in the
motion,citing
language from an initial
court order. "This amounts to compelled
speech and viewpoint discrimination in violation of the First
Amendment."

The Electronic Frontier Foundation, a nonprofit
digital-rights group, which became involved in the case "early
on," plans to file an amicus brief in support of Apple, focusing
on these First Amendment arguments, staff
attorney Andrew Crocker told Business Insider.

"Generally, the First Amendment says the government can't force
you to say something, especially if you disagree with it,"
Crocker said. "Well, by being forced to write code, the
government is asking just that."

"Well-settled law," as Apple's attorneys note in the
motion, has established code as free speech within the
context of the First Amendment.

"The general idea is that the First Amendment protects all kinds
of expression, whether that's speech, musical scores, or
mathematical equations," Crocker said.

And Apple disagrees with software the government wants.

"When Apple designed iOS 8, it wrote code that announced the
value it placed on data security and the privacy of citizens by
omitting a back door that bad actors might exploit," the motion
reads.

The court order also requires that Apple cryptographically "sign"
any software it creates.

By signing the software, "Apple is forced to verify that the
software comes from Apple, it forces Apple to convey that
message, which undermines the one it's been sending to
consumers," Esha Bhandari, staff attorney on the American Civil
Liberties Union's Project on Speech, Privacy, and Technology,
told Business Insider.

The ACLU plans to file an amicus brief, focusing on Fifth
Amendment arguments, in support of Apple, according to Bhandari.

Fifth Amendment

[B]y conscripting a private party with an extraordinarily
attenuated connection to the crime to do the government's bidding
in a way that is statutorily unauthorized, highly burdensome, and
contrary to the party's core principles, [the government's
request] violates Apple's substantive due process
right to be free from the "arbitrary deprivation of [its]
liberties."

In other words, Apple doesn't have a strong connection, if
any, to the San Bernardino shooting. And even if it did,
previous laws don't outline whether or not the government can
make this type of request from a private company.

"This kind of conscription, we've never seen it before, so
the courts have never really seen it," Bhandari said. "While the
government has rights [in regard to warrants], those rights have
never include asking a company to create something in this
way."

The Fifth Amendment could also apply to this case since the
company disagrees with the ideological meaning behind creating
the software.

"You create something of your own labor that you don't want
to create, that you didn't already create," Crocker explained.
"It's very parallel to the First Amendment argument, just in a
different way."

Not only does the FBI's request lack a legal
precedent, but the motion argues that the government "has
produced nothing more than the speculation that this iPhone
might contain potentially relevant information."

FBI Director James Comey expressed uncertainty about the contents
of the phone
in a statement.

"Maybe the phone holds the clue to finding more terrorists. Maybe
it doesn't," he said. "But we can't
look the survivors in the eye, or ourselves in the mirror, if we
don't follow this lead."